Assume that a defendant is on trial for sexually assaulting a victim. And, assume that the defendant's defense is, essentially, that the alleged victim is a "crack whore." Should the defendant be able to present evidence of the alleged victim's prior drug (ab)use, without any accompanying evidence that she traded sex for drugs (or money to get drugs) to support the inference that she consented to the subject sexual act in exchange for drugs (or drug money)? According to trial courts in Kentucky in Vermont, the answer is "no." According to the Supreme Court of Vermont and the Court of Appeals of Kentucky in its recent opinion in Bell v. Commonwealth, 2011 WL 2078563 (Ky.App. 2011), the answer is "yes." In this post, I will explain why I think that these opinions were horribly misguided.

In Bell, Eric Bell was convicted of convicted on charges of first-degree sodomy, fourth-degree assault, and tampering with physical evidence. After he was convicted, Bell appealed, claiming, inter alia,

that the circuit court erred in excluding statements the complainant made to medical personnel concerning her history of drug use and addiction. He contends that if he had been permitted to introduce evidence of the complainant's drug use history, the jury would have been more likely to believe his version of the events in question, i.e., that due to the complainant's twenty-year drug addiction, she consensually traded sex in exchange for receiving crack cocaine from Bell. He alleges that if he had been allowed to present evidence to the jury that complainant “was a chronic crack cocaine addict and had no money,” the jury may have inferred she would have traded sex for crack cocaine.

In addressing Bell's appeal, the Court of Appeals of Kentucky found that none of the cases cited by Bell were persuasive. The court, however, noted that it conducted its own research and uncovered State v. Memoli, 18 A.3d 567 (Vt. 2011). As the Court of Appeals of Kentucky noted,

In Memoli, there was evidence in the record that the complainant had smoked marijuana on the evening in question....The complainant testified that the defendant's companion blew crack cocaine smoke into her mouth....Memoli and his companion testified that the complainant smoked the crack cocaine herself....Additionally, Memoli and his companion testified that the complainant traded sex for drugs, but the complainant alleged that she was raped. Memoli's defense counsel sought to introduce evidence of the complainant's use of drugs both before and after the date of the offense as her motive for engaging in sexual acts. Defense counsel argued that without the introduction of such evidence, Memoli did not have a defense because his defense was: (1) that the complainant traded sex for drugs; (2) that she therefore consented to the sexual relations; and (3) that the reason she did so was because she "was a crack addict."...However, the trial court did not permit Memoli to introduce evidence of the complainant's prior and subsequent drug use. The court only permitted Memoli to introduce evidence of the complainant's drug use on the night of the incident. The court held that any other evidence of the complainant's drug use was irrelevant to the issue of consent.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

According to the Vermont Supremes, this evidence was admissible because

Defendant did not seek to introduce complainant's drug use to prove that she had a specific character trait of being an addict or a reputation as a drug user to undercut her credibility.... Defendant's proffer was narrower: that evidence of complainant's drug use was relevant to demonstrate that she had motive to consent to sexual acts with defendant. This purpose is consistent with the rule.

The Supreme Court of Kentucky agreed with this reasoning in Bell, concluding that

We find the Vermont Supreme Court's analysis in Memolipersuasive and hold that the reasoning applies to this case. As in Memoli, in Bell's case, there was evidence that the complainant had drugs in her system the evening in question; the defendant testified that he and the complainant had exchanged sex for drugs; the complainant testified that she was raped; the defendant wanted to introduce evidence of the complainant's history of drug use because his defense was that due to complainant's drug addiction, she was willing to trade sex for drugs; and the court did not admit evidence of the complainant's history of drug use.

The Kentucky Rules of Evidence at issue in this case and the Vermont Rules of Evidence at issue in Memoli are quite similar....[T]he evidence of prior drug use was relevant for the purpose of determining whether the complainant consented to the sexual relations with Bell in exchange for drugs.

So, why do I think that these opinions are horribly misguided? Here's how Rule 404(b) should work. Dana starts a fight with Veronica. Two months later Dana allegedly assaults Victoria. Dana is now on trial for assaulting Victoria. The prosecution wants to present evidence of Dana's prior fight with Veronica. The prosecution will be unsuccessful. Why? Rule 404(b) prevents the introduction of propensity character evidence, i.e., evidence that a person has a propensity to act in a certain way and thus likely acted in conformity with that propensity at the time in question. Put more simply, the prosecution can't present evidence of Dana's fight with Veronica to prove, "Once a thug, always a thug." The theory is that we want people to be convicted based upon evidence that they committed the crime charged, not based upon evidence of past crimes and inferences therefrom.

Conversely, let's say that the fight two months before the alleged assault was between Dana and Victoria, and Dana ended up with a black eye and a split lip. The prosecution wants to present evidence of Dana's prior fight with Victoria. The prosecution will likely be successful. Why? The prosecution is not labeling Dana as a perpetual thug. Instead, they are presenting evidence that establishes that there is a specific reason to believe that Dana would attack Victoria based upon their prior fight. In other words, this is proper evidence of motive under Rule 404(b).

Now, let's go back toBell. What was Bell's purpose in trying to introduce evidence of the alleged victim's prior drug use and addiction? It was to prove that she was a "crack whore." It was not evidence that the victim had a specific reason, or motive, to consent to sex with Bell in exchange for drugs or drug money. It was evidence that, based upon her history of drug (ab)use, she was likely to consent to sexual acts with anyone at anytime in exchange for drugs or drug money. In other words, this "Once a crack whore, always a crack whore" evidence was classic propensity character evidence that should have been excluded under Rule 404(b).

For comparison's sake, let's look at the opinion of the Superior Court of New Jersey, Appellate Division, in State v. Mazowski, 766 A.2d 1176 (N.J.Super.A.D. 2001), in which the court reversed a defendant's burglary and theft convictions based upon the prosecution's presentation of evidence of his drug addiction to prove that he had a motive to commit the crimes charged. According to the appellate court, the drug addiction evidence did

not relate to the particular crime with which defendant is charged, or to any other particular crime. Rather, it is submitted as a reason why defendant commits crime in general. It is an undifferentiated "motive" to steal. As such, except for its label, it is indistinguishable from a claim that defendant has a “disposition,” or general propensity to commit crimes, which is precisely what N.J.R.E. 404(b) prohibits.

Comments

In my humble opinion, the difference between Mazowski and the Bell and Memoli opinions is simply the 6th Amendment and the Due Process Clause. While I think the issue is close, the Confrontation and Due Process Clauses break the tie in favor of the accused.